Football and the Infield Fly Rule Howard M
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E Football and the Infield Fly Rule s R Howard M. Wasserman SCOU AbstRAct In a previous article, I defended baseball’s infield fly rule, the special rule long beloved by legal scholars, in terms of equitable balance in distribution of costs and benefits between competing teams. This Essay applies those cost-benefit and equity insights to football. It explores several plays from recent Super Bowls, the cost-benefit balance on those plays, and the appropriate role in football for limiting rules similar to the infield fly rule. LA LAW REVIEW DI REVIEW LAW LA uc AuthoR Howard M. Wasserman is Professor of Law at FIU College of Law. Thanks to Alex Pearl and Spencer Webber Waller for comments on early drafts. 61 UCLA L. REV. DISC. 272 (2014) TabLE oF contEnts Introduction.............................................................................................................274 I. Limiting Rules .................................................................................................275 II. Football and Limiting Rules. ......................................................................277 A. Intentional Penalties. .................................................................................279 1. Running Time Through Penalties. ...................................................279 2. Conserving Time Through Penalties. ...............................................283 B. Intentional Scores and Intentional Nonscores. ..........................................285 C. Intentional Safety. ......................................................................................289 D. Sideline Interference. .................................................................................293 Conclusion ................................................................................................................295 273 274 61 UCLA L. REV. DISC. 272 (2014) INTRODUCTION Legal scholars have long loved the infield fly rule, the often-mysterious baseball rule that, in certain situations, makes a batter out even if an infielder fails to catch an easily catchable fly ball.1 This is a subspecies of the broader academic fascination with baseball.2 In The Economics of the Infield Fly Rule, I defended the rule as part of baseball’s structure and logic, justified by concerns for an equitable balance and distribution of costs and benefits between competing sides on indi- vidual plays.3 While baseball still calls itself the national pastime, professional football long ago surpassed it in popularity, with college football now close behind.4 Yet the academic fascination has not transferred to football as a game, as opposed to as a powerful institution at the center of important legal controversies.5 And no one has yet explored the rules of football in search of a counterpart to the infield fly rule. Rather, the supposed absence of anything akin to the infield fly rule in football is an arrow in the quiver against that rule in baseball. Critics argue that if football does not have or need something akin to the infield fly rule, then baseball does not need it either. While no football rule enjoys the infield fly rule’s pedigree or intellectual cult following, football is filled with game situations and corresponding rules cut from its intellectual and logical cloth, seeking similarly equitable cost-benefit distribu- 1. MAJOR LEAGUE BASEBALL, OFFICIAL BASEBALL Rule 2.00 (2013) (Infield Fly); Howard M. Wasserman, The Economics of the Infield Fly Rule, 2013 UTAH L. REV. 479, 491. 2. E.g., BASEBALL AND THE AMERICAN LEGAL MIND ix–x, 3 (Spencer Weber Waller et al. eds., 1995); ROGER I. ABRAMS, LEGAL BASES: BASEBALL AND THE LAW 3 (1998); A. BARTLETT GIAMATTI, TAKE TIME FOR PARADISE: AMERICANS AND THEIR GAMES (1989); Neil B. Cohen & Spencer Weber Waller, Taking Pop-ups Seriously: The Jurisprudence of the Infield Fly Rule, 82 WASH. U. L.Q. 453, 454 (2004); Aside, The Common Law Origins of the Infield Fly Rule, 123 U. PA. L. REV. 1474 (1975). 3. Wasserman, supra note 1, at 493. 4. Football Continues to Be America’s Favorite Sport; the Gap With Baseball Narrows Slightly This Year, HARRIS INTERACTIVE (Jan. 17, 2013), http://www.harrisinteractive.com/NewsRoom/Harris Polls/tabid/447/ctl/ReadCustom%20Default/mid/1508/ArticleId/1136/Default.aspx. 5. Cf. Michael A. McCann, American Needle v. NFL: An Opportunity to Reshape Sports Law, 119 YALE L.J. 726 (2010) (discussing antitrust implications of league licensing deals); Howard M. Wasserman, Introduction: Football at the Crossroads, 8 FIU L. REV. 1 (2012) (introducing a symposium on head trauma in football); Kerri L. Stone, Why Does It Take a Richie Incognito for Us to Start Talking About Bullying?, HUFFINGTON POST (Nov. 16, 2013, 12:35 PM), http://www. huffingtonpost.com/kerri-l-stone/post_6167_b_4276891.html (discussing new public awareness of workplace bullying following report of bullying in National Football League (NFL) locker rooms). Football and the Infield Fly Rule 275 tion. Having just marked another Super Bowl Sunday6 as an unofficial national holiday,7 it is a good time to consider football as a source of game situations in which special rules are necessary to ensure equitable cost-benefit exchanges. Co- incidentally and beneficially, two recent Super Bowls8 and several regular season games from the just-completed 2013 regular season have featured plays illustrat- ing how and when cost-benefit imbalances arise in football and how the game’s rulemakers respond. And taking advantage of this journal’s online format, I have embedded video and photos of these critical plays as part of the Essay. I. LIMITING RULES In my recent contribution to infield fly rule scholarship, I introduced the concept of limiting rules, defined as unique, situation specific rules that override ordinary rules, practices, and strategies in particular game situations. I further ex- plained that such rules are necessary when the cost-benefit exchange on a play shifts inequitably in favor of one side and against the other.9 A limiting rule is warranted when a game situation is defined by all of four features. First, the play in question produces an overwhelming, unfair, and ineq- uitable cost-benefit disparity, in which one side gains substantial benefits while incurring no, or virtually meaningless, costs and the opposing side incurs substan- tial costs while obtaining no, or virtually meaningless, benefits. Second, the play involves a disparity in control—the advantaged side is free to manipulate the situ- ation to its benefit, while the disadvantaged side is helpless to stop or counter that manipulation within the game’s regular rules and practices. Third, the advan- taged side achieves these disparate benefits by intentionally failing or declining to perform the athletic skills they are expected to perform under the game’s ordinary practices and strategies. And fourth, the opportunity to gain that overwhelming 6. Super Bowl XLVIII was played on February 2, 2014—the day before this essay was published. It was played outdoors in New Jersey, the first cold-weather outdoor Super Bowl. Jim Litke, Super Bowl: Cold Weather, Cold Cash, PHILLY.COM (Dec. 27, 2013, 12:00 AM), http://www.philly. com/philly/news/local/20131226_Super_Bowl__Cold_weather__cold_cash.html. 7. Michael Jay Friedman, Super Bowl Sunday an Unofficial Holiday for Millions, IIP DIGITAL (Feb. 1, 2012), http://iipdigital.usembassy.gov/st/english/article/2006/02/20060202162836jmnamdeirf0.5 559656.html#axzz2paVNWI2i. 8. In Super Bowl XLVI, played in February 2012, the New York Giants defeated the New England Patriots 21–17. Nick Meyer, Super Bowl XLVI Results: Giants Defeat Patriots in Final Minutes, YAHOO! SPORTS (Feb. 5, 2012), http://sports.yahoo.com/nfl/news?slug=ycn-10930532. In Super Bowl XLVII, played in February 2013, the Baltimore Ravens defeated the San Francisco 49ers 34–31. Super Bowl XLVII New Orleans, NFL, http://www.nfl.com/superbowl/47 (last visited Jan. 6, 2014). 9. Wasserman, supra note 1, at 486. 276 61 UCLA L. REV. DISC. 272 (2014) cost-benefit advantage incentivizes the advantaged side to intentionally fail or de- cline to perform those expected athletic skills whenever the situation arises.10 The consequent limiting rule imposes the outcome that would result on the play if the advantaged team had acted consistent with ordinary expectations by performing the game’s ordinary athletic skills in the expected manner. By impos- ing that outcome, the limiting rule removes the opportunity and incentive for players to act contrary to expectations or to fail, or decline, to perform expected athletic skills in search of extraordinarily greater benefits.11 The infield fly rule— which declares the batter out even if the fielder fails to catch an easily catchable fly ball12—is the paradigm of a limiting rule.13 Importantly, this framework recognizes that sports often involve cost- benefit tradeoffs. Teams readily accept suboptimal outcomes on individual plays; each gains some benefits, surrenders some benefits to the opponent, and incurs some costs, each hoping to come out ahead on the exchange. When that cost- benefit exchange is relatively fair and equitable, limiting rules are unnecessary. Rather, the situation can and should be left to the game’s ordinary rules, practices, and strategies. Only when the cost-benefit imbalance is significantly disparate and inequitable and too weighted toward one side and against the other does a limiting rule become necessary.14 Nor is this framework limited to sports. I previously analogized the rules of sport to the